Recent Legal Changes
Recent changes in the DUI law in Rhode Island have prompted the law enforcement community to adapt their procedures for dealing with drivers suspected of DUI. One of those procedural changes has apparently backfired. Because of this mistake, people charged with DUI or breathalyzer refusal now have an argument in court which can kill the entire case against them. The explanation is kind of complicated, but bear with me.
When the police perform a DUI investigation, at some point they will ask the motorist to consent to a breathalyzer examination. This examination is technically a search, and searches are controlled by the 4th Amendment of the U.S. Constitution. The 4th Amendment says that a search can only be conducted with a warrant. If there is no warrant for the search it is unconstitutional unless it meets some very well defined exception to the warrant requirement.
Stay with me…
One of those exceptions is consent of the person to be searched. If consent is given, then the police do not need a warrant. Therefore a search with consent is legal.
But we are not done.
Information on Consent
The nature of the consent matters. The person subject to the search has to give consent freely, voluntarily, and intelligently. If the consent is not voluntary or made without knowledge of the right not to give consent, or the consequences of consent, then the consent is invalid.
Which brings us back to our DUI defendant. When the police request that the defendant take the breathalyzer, they have to give the defendant fair warning of the penalties of refusing the test. This is so that later on, when the case is in court and the state is trying to get the breath test into evidence, the government can say that the consent was intelligent and voluntary. If the police do not warn of the penalties of the refusal, then the consent to take the test is invalid.
What has happened now with the new DUI law is that there are a bunch of new penalties and penalty structures for DUI and refusal. The police adapted their form they use to advise DUI suspects of their rights, but misstated the penalties.
Now there are a whole bunch of DUI and refusal cases whose outcome is in doubt. If only the police had consulted with the defense lawyers before they made the form….
Another time, we will discuss how the bad form affects refusal suspects.
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